Alexander Orr, Jr., Inc. v. Florida Indus. Com'n

• Decision Date: 29 September 1937
• Citation: 176 So. 172,129 Fla. 369
• Parties: ALEXANDER ORR, Jr., Inc., et al. v. FLORIDA INDUSTRIAL COMMISSION et al.
• Court: Florida Supreme Court

176 So. 172

129 Fla. 369

ALEXANDER ORR, Jr., Inc., et al. v. FLORIDA INDUSTRIAL COMMISSION et al.

Florida Supreme Court

September 29, 1937

Proceeding under the Workmen's Compensation Act by Mrs. Andrew Jerome Maxwell, a widow, claimant, for compensation for death of her husband, Andrew Jerome Maxwell, opposed by Alexander Orr, Jr., Inc., employer, and the Indemnity Insurance Company of North America, insurance carrier. From a decree affirming an award of the Florida Industrial Commission granting compensation, the employer and insurance carrier appeal.

Affirmed. Appeal from Circuit Court, Dade County; H. F Atkinson, judge.

COUNSEL

McKay Dixon & DeJarnette, of Miami, for appellants.

Ross Williams, of Miami, for appellees.

OPINION

BUFORD Justice.

The appeal here is from a decree of the circuit court affirming the award of Florida Industrial Commission in favor of Mrs Andrew Jerome Maxwell, a widow, as compensation for the death of her husband, Andrew Jerome Maxwell, whom she alleged died as result of sunstroke, and that the same was an accident under the terms of Florida Workmen's Compensation Act being chapter 17481, Acts of 1935, in that the death of Andrew Jerome Maxwell proximately resulted from an injury arising out of and in the course of his employment, by and under the direction of Alexander Orr, Jr., Inc., a Florida corporation.

Paragraph 5 of section 2 of that act provides:

'The term 'injury' means personal injury or death by accident arising out of and in the course of employment, and such diseases or infection as naturally or unavoidably results from such injury.'

So it is that the question for our determination is whether or not the petition sufficiently alleges, and the testimony establishes, a state of facts which makes the provisions of the act above mentioned applicable and the petitioner, the appellee here, entitled to compensation thereunder.

We have found no better expression of the rule which is applicable in cases such as this than that enunciated by the Supreme Court of Alabama in the case of Gulf States Steel Co. v. Christison, 228 Ala. 622, 154 So. 565, 569, in which that court said:

'If the heat exhaustion arose out of the employment, as well as in its course, we think it is clear that any harmful effect upon the physical structure of the body of the employee, which was a proximate result of it, is an accident under our statute. Section 7596, (i) Code; Gulf States Creosoting Co. v. Walker, 224 Ala. 104, 139 So. 261; New River Coal Co. v. Files, 215 Ala. 64, 109 So. 360; 1 Honnold on Workmen's Compensation, p. 281, § 86. In connection with the sort of accident here involved, the principle to which most authorities give assent is that the harmful condition does arise out of the employment, if, in the performance of the duties for which he was engaged, in the manner required or contemplated by the employer, it is necessary for the employee to expose himself to a danger, materially in excess of that to which people commonly in that locality are exposed, when not situated as he is when thus performing his service, and that such excessive exposure may be found to have been the direct cause of the injury, though operating upon other conditions of common exposure. American Fuel & Clay Products Co. v. Gilbert, 221 Ala. 44, 127 So. 540; Cudahy Packing Co. v. Parramore, 263 U.S. 418, 44 S.Ct. 153, 68 L.Ed. 366, 30 A.L.R. 532.

'That principle has been specifically thus applied to sunstroke or heat prostration or heat exhaustion in many varying conditions. The authorities in the main adopt and apply it substantially as we have thus stated. It would serve no good purpose to refer to the discussions and various applications of the principle. Many cases are analyzed in texts and notes as follows: 1 Schneider's Workmen's Compensation Law (2d Ed.) pp. 701 to 710; 1 Honnold's Workmen's Compensation, p. 428; 13 A.L.R. 979; 53 A.L.R. 1085; 46 A.L.R. 1218; 25 A.L.R. 147; 16 A.L.R. 1038, 1039.'

We adopt that language supported by the authorities cited as a statement of the law applicable to the instant case. Such appears to have been the holding of the commission and of the circuit judge.

We come then to the question as to whether or not the evidence in this case established the fact that the deceased was exposed to greater hazards in the performance of the work required of him at the time and place of this employment than those experienced by other people generally in the locality. The record shows that Maxwell, deceased, was employed as a plumber by Alexander Orr, Jr., Inc., laying sewer pipe at a place known as Sunny Isles, in Northern Miami Beach, though the location of the work was some 600 yards from the ocean and about the same distance from an inland bay, on August 29, 1935; that it was a hot, sunshiny day and Maxwell was required to use, and did use, in the performance of his work, a hand furnace or blow torch, which necessarily increased the heat to which he was subjected. His work was at or near the ground. The record shows that he had been subjected to this intense heat for several hours when he collapsed and after a short rest returned to his work, continued for some little while, when he again collapsed and shortly thereafter died.

It is true that there is evidence in the record...